Efforts to Extend and Enforce the DMCA

But wait—there’s more. Not only are publishers turning on libraries and librarians, now the music industry is trying to tell us what we can do with our CDs. One of the problems with the DMCA is that it isn’t very clear. Against a backdrop of challenges to the DMCA, Senator Fritz Hollings of South Carolina held hearings on standardizing digital copy-protection technology in nearly all PCs and consumer electronic devices. Hilary Rosen of the RIAA was one of those who testified. This is a really stupid idea for any number of reasons. The technologically ignorant aren’t the people to create standards, particularly when those standards would restrict innovation, and place control of intellectual property with a few large corporations, corporations that are potentially immortal.

There are more intelligent ways to go about protecting rights holders, without assuming all consumers are thieves, and without restricting reasonable use of personal property to make copies for personal use. DigitalConsumer.org has some good ideas, including a Consumer Bill of Rights.

DMCA

The DMCA or Digital Millennium Copyright Act has essentially removed the concept of “fair use” from consideration when using digital assets. The implications of this restriction, coupled with the 1998 Copyright Extension Act, for libraries and schools are horrific. This Business Week article about Brewster Kahle’s efforts to expand the Internet Archive reveals the problems of excessive copyright limitations. (Kahle filed an amica curiae brief in support of Eldred.) U.S. Representative (Virginia) Rick Boucher explains better than I can why the DMCA act serves to stifle the exchange of information. The idea of restricting users ability to copy media they have legally purchased for personal use is not even technically sound. John “maddog” Hall, of Linux International, offers a reasonable solution: “fix the DMCA, then enforce the laws we have already,” pointing out that “We’re not all criminals.”

Why the Bono act is Unconstitutional

Michael Reinhardt in an interesting thread in TidBits discussion board TidBits Talk summarized the rationale for the challenge to the Sonny Bono act. Basically, as he points out (and I’m cribbing here), Congressional power to enact law is based on specific permissions or “grants” in the Constitution, primarily found in Art. I, section 8. The clause which authorizes copyrights is Art I, Sec. 8, Clause 8: “To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.”
Reinhardt adds “The crux of the argument being used to challenge the Sonny Bono Act is that extending existing copyright terms does not promote the progress of Science and the useful Arts, and therefore Congress had no authority to pass the act (the act is unconstitutional).